"The three hardest tasks in the world are neither physical feats nor intellectual achievements, but moral acts: to return love for hate, to include the excluded, and to say, "I was wrong." - Sydney J. Harris

6/12/2008

Scalia at his best.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-beingof enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Viewsof Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.A1, A12. But others have succeeded in carrying on theiratrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghanjudge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.

A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quiteamazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:"Nothing prevents the President from returning toCongress to seek the authority [for trial by military commission] he believes necessary."Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine— through democratic means—how best to do so. The Constitution places its faith in those democraticmeans." Id., at 636 (BREYER, J., concurring).1Turns out they were just kidding.

But the idea that federal review of these cases is going to lead to en masse release and murderous rampages is not a good argument. Federal judges are not, whatever Fox News would have you believe, a bunch of activist liberals who can't wait to let criminals out of jail. To the contrary, what with incredibly deferential standards of review established by precedent and by Congress, plus the ease with which courts find that criminal defendants "waive" their rights when their attorneys make mistakes, it's almost impossible to overturn convictions. If the federal courts let someone go, something was SERIOUSLY wrong with that person's trial. So the only way Scalia's horrors are going to take place is if the prisoners' trials are seriously screwed up. And if that's happening, isn't it a problem?